Appeals laws precedent set by SA

The most significant changes to Australia's criminal appeal laws in a century have been passed in South Australia, setting a precedent for reform which could flow all the way to the High Court.

a close up of a judge gavel

The lenient judgements were also less likely to be appealed, the study said. Source: AAP

(Transcript from World News Australia Radio)

The most significant changes to Australia's criminal appeal laws in a century have been passed in South Australia, setting a precedent for reform which could flow all the way to the High Court.

South Australia has passed reforms to allow prisoners a second chance to appeal their convictions in the case of compelling new evidence.

Until now, people convicted of an offence have had a single right of appeal, and once that appeal is exhausted they have no further legal options, even if new evidence emerges.

The South Australian change potentially prevents miscarriages of justice that could see innocent people languishing in prison while the real culprits remain free.

The prospect of being able to present fresh evidence to court after an initial, failed appeal is about to become a reality in South Australia.

Attorney General John Rau is bringing down sweeping reforms.

"There have been many cases in Australia and overseas over many years where it's been more than suggested that an injustice ultimately has been done to a particular individual because some new material has come to light and they, for various reasons, have been unable to have that heard."

At present, the only way such matters can be dealt with is to petition the state Governor to seek the intervention of the Attorney, a process Mr Rau describes as opaque and reliant on the discretion of the politician.

"That is obviously a completely non-transparent process and it is one that from my experience the convicted people concerned don't feel very comfortable with because it is not transparent. The idea we have here is it will all be done in open court, it will be dealt with completely openly so that everyone can have confidence the system is dealing with these probably fairly rare but still very important cases."

Retired professor of law at the University of Adelaide, Dr Robert Moles, has been campaigning for this reform for years.

He's published books on forensic evidence and miscarriages of justice, compared justice systems in Australia, Britain and Canada, and presented a massive submission to the parliamentary inquiry that preceded these reforms.

Mr Moles says change has been a long time coming.

"The appeal rights in Australia were first introduced after the British Criminal Appeal Act in 1907 and so the Australian equivalents were introduced in the various states and territories around about 1910, 1912, 1913. So we've had 100 years of unamended appeal rights, and they've always been consistent between the various states and territories."

Robert Moles believes the fact there's now inconsistency will prompt other states and territories to act to maintain the principle of equality before the law.

"All Australians should have the same right to a fair trial and they should have the same right to a fair appeal. So if South Australians have a new statutory right of appeal then it follows logically that all other Australians should have the same statutory right of appeal, and so we expect that the other states and territories will have a careful look at this and before very long they will all legislate to bring themselves back into conformity with each other, as they have been for the last 100 years."

Former High Court Justice Michael Kirby has publicly backed the reforms, having previously expressed frustration at the High Court's inability to accept fresh evidence.

Dr Moles says there are at least a dozen cases in South Australia alone waiting to be tested under the changes.

It includes the case of Aboriginal man Derek Bromley, who was convicted of murder in 1984.

He maintains he is innocent.

Bromley completed his sentence in 2008, yet has not been released.

Before he can be freed he must complete a re-socialisation course which requires him to apologise for his crime and say he's a changed man - but Bromley won't show remorse for something he says he didn't do.

Robert Moles says the criminal appeals reform means Bromley may now have a chance to present new evidence omitted from his previous appeal, which could prove his innocence.

He says international experience shows why it's so important for cases like Bromley's to be able to be re-tested.

"The legal system can and does make mistakes. In Britain they have various procedures by which they can pick those up and put them right - after the Birmingham bombers' and Guildford bombers' cases were overturned there, they introduced a thing called the Criminal Cases Review Commission. Over the last 12 or 13 years, referrals from the CCRC have led to over 350 convictions being overturned: over 70 murder convictions have been overturned, nearly 40 rape convictions have been overturned, and these are all in the category of people who were unsuccessful in earlier appeals."

However Attorney General John Rau says the process is not risk-free for potential appellants, as the Bill also allows the Director of Public Prosecutions an automatic right of cross-appeal.

And he says the grounds on which cases can be mounted are quite specific.

"This is not an open door for every person who is not happy with being convicted of an offence to just get to roll the dice again. It's for people who have been convicted, have then appealed and have lost the appeal, and then some years later for example a completely unknown witness comes to light who produces evidence which makes the original verdict unsound or dangerous... Or DNA evidence, for example."

The reform has raised questions about the capacity of the already-burdened legal system to cope with the potential increase in appeals.

Mr Rau says establishing proper legal principle is important regardless of the cost, and he believes the courts will be able to absorb the workload.

Then there's the cost to those involved - one who understands this is Jackie Schmidt.

She's the sister of Gordon Woods, the man found to have been wrongly convicted of throwing his girlfriend off a cliff in Sydney.

Ms Schmidt says her brother was fortunate to succeed in his first appeal; even so, he spent many years in prison as an innocent man.

She sacrificed her job to fight his case.

"The fact that I really went from having a full-time job to working not even part-time. I was spending hours and hours and hours of my own time putting together the information that would eventually go to the lawyers to help put the appeal together and not to mention the cost of actually accessing information. I guess in total it probably cost me personally, probably about, not counting lost income, probably about $40,000 just to pursue this for two years."

Ms Schmidt says while the cost to her was enormous, it was nothing compared to the toll on her brother.

She says the criminal appeal reforms raise the question of recompense for those wronged.

"And it is going to result in some cases, meritorious cases, being overturned. And then we will have to look at how do we assist these people who, in some cases, have spent nearly 30 years behind bars because of a miscarriage of justice? How do we integrate them back into the population? How do we support them in regaining their lives, and meaningful lives at that? And how do we compensate them for all the lost opportunities they've had to endure?"


Share
7 min read

Published

Updated

By Karen Ashford
Source: SBS

Share this with family and friends


Get SBS News daily and direct to your Inbox

Sign up now for the latest news from Australia and around the world direct to your inbox.

By subscribing, you agree to SBS’s terms of service and privacy policy including receiving email updates from SBS.

Download our apps
SBS News
SBS Audio
SBS On Demand

Listen to our podcasts
An overview of the day's top stories from SBS News
Interviews and feature reports from SBS News
Your daily ten minute finance and business news wrap with SBS Finance Editor Ricardo Gonçalves.
A daily five minute news wrap for English learners and people with disability
Get the latest with our News podcasts on your favourite podcast apps.

Watch on SBS
SBS World News

SBS World News

Take a global view with Australia's most comprehensive world news service
Watch the latest news videos from Australia and across the world